Athimoolam Servai and Another vs R.M. Gopalakrishna Kone

Jackson, J.—The petitioners seek to revise the judgment of the Additional Subordinate Judge of Madura in O.P. No. 22 of 1925.

The petitioners (two electors) were applying to set aside the election to the Madura Municipal Council of the counter-petitioner. On the day of

hearing they were not ready with their witnesses, and the Court summarily dismissed their petition. The witnesses then available should have been

present, and they have no legitimate grievance on this account. But, and this is the gravamen of the petition, the main bulk of their evidence had

already been shut out by the order of the court on 12th December, 1925. They alleged that the counter-petitioner had by deceitful means procured

the improper entry of names in the electoral roll, an election offence u/s 52 of Act V of 1920. Rule 11 of the Rules for the decision of election

disputes provides that the returned candidate may be unseated if in the opinion of the Judge he has committed an offence described in Section 52.

But the learned Subordinate Judge declined to give any opinion in the matter, because, as regards the electoral roll, the orders passed by the

revising authority shall be final [Rule for preparation of electoral rolls, 7 (b) and no failure to observe dates or directions shall entitle any one to

question the validity of the registers in election proceedings [R. 8 (e)]. He holds therefore that Section 52 in Rule 11 can only apply to an offence in

regard to an electoral roll after its publication.

There seems to be no necessity to circumscribe the scope of the rule in this manner. The revising authority is only concerned with the electoral

roll as such, adding names which ought not to have been omitted, and removing names which ought not to have been inserted; and the list of names

so drawn up by that authority is final. It is no concern of the revising authority how the mistakes occurred, whether on account of fraud or

oversight, and these are questions which it need not and cannot decide. In the present case it is alleged that some 200 voters were wrongfully

entered as paying profession tax. If the petitioner had established his point before the revising"" authority, he could have got those names removed,

and, as he did not do so, he cannot get them removed now. He cannot now advance the plea that 200 voters should be eliminated, thereby giving

him a majority, nor is that his case. All he could urge is that the successful candidate by deceitful means procured the improper entry of names in

the electoral roll; and this could not have been urged on any earlier occasion. The distinction between the two pleas becomes clear if the result is

borne in mind. Suppose that the petitioner only succeeds in this enquiry in establishing the fact that 200 voters are improperly entered upon the

electoral roll, without proving the counter-petitioner''s deceitful connivance, it will not help him in the slightest degree, whereas before the revising

authority, he could have got the names struck off, without any question of deceitful connivance ever having arisen. Therefore, the Court cannot

refuse jurisdiction in this matter, and must go into the question whether the offence described in Section 52 was committed. Accordingly, his order

is set aside, and the learned Subordinate Judge is directed to dispose of the petition in the light of the above observations. The charge connected

with Section 52 can be re-opened, but not the other charges for which, through the petitioner''s own default, evidence was not forthcoming. On

behalf of the counter-petitioner, the power of this Court to interfere is questioned. There is direct authority in Ahamad Thambi Maracayar v.

Basava Maracayar ILR (1922) M 123 : 44 MLJ 69, which follows Ramaswami Goundan v. Muthu Velappa Goundan 44 MLJ 1, on the principle

that in this matter the District Municipalities and Local Boards Acts are analogous. I agree, and that analogy attracts the authority of the Full Bench

ruling in Parthasaradhi Naidu v. Koteswara Rao ILR (1923) M 369 : 46 MLJ 201. In that case the learned Chief Justice was led to decide that

the Judge was not a persona designata by a reference to two rules, a rule permitting him to transfer the inquiry to a subordinate Court, and a rule

that the ballot papers shall be sealed and not again inspected except under the orders ""of an election or other competent Court"". The first of these

rules is not repeated in the Rules under the District Municipalities Act, but the second is IX (1922) 44 MLJ 1 of the Rules for the election of

Chairman and Vice-Chairman of Municipal Council and Rule 26 (1) of Rules for the conduct of elections of Municipal Councillors. In fact, these

are the rules actually quoted by the learned Judge; Rule 12 (2) of the Rules for the election of members of District Boards by Taluq Boards or Rule

28 (1) of the Rules for the conduct of elections of members of Taluk and Union Boards have a slightly different wording, ""orders of a competant

court"". I see no reason therefore to hold that the Full Bench ruling on the Local Boards Act does not equally apply to the District Municipalities

Act. Moreover, if Government had intended the election inquiry to be held by a persona designata, they could easily have recast the rule to put this

beyond all doubt as soon as their original drafting had been interpreted in a contrary sense. In matters of this sort acquiescence is the Court''s best

guide to intention.